The New Jim Crow, by Michelle Alexander

In honor of MLK Day (a day late), I wrote up my summary of The New Jim Crow, by Michelle Alexander, a book that makes the case that King’s dream of racial equality in the United States is still very far away.

The thesis of the book is that after Jim Crow laws were overthrown in the 1960s with the passage of the Civil Rights Act, they have been steadily and insidiously replaced by laws, particularly drug laws, that are disproportionately applied to people of color. The laws are color-blind, but their application is not, with people of color more likely to be stopped by police, more likely to be arrested for minor infractions, and much more likely to be prosecuted to the full extent of the law. Alexander cites several court cases which called out this racial bias, and the court consistently ruled that unless there was conscious racial intent in a given case, there was no case for racial bias. Given the prevalence of unconscious bias, this is tantamount to endorsing bias.

Alexander also accuses the media of reinforcing this racial bias. If you ask an American to think of a criminal, they are very likely to think of an African American man. In her words, “For more than three decades, images of black men in handcuffs have been a regular staple of the evening news. … In the era of mass incarceration, what it means to be a criminal in our collective consciousness has become conflated with what it means to be black., so the term white criminal is confounding, while the term black criminal is nearly redundant. … Whiteness mitigates crime, whereas blackness defines the criminal.”

The statistics are mind-boggling. “In less than thirty years, the U.S. Penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase. … The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.” “From the Chicago region alone, the number of those annually sent to prison for drug crimes increased almost 2,000 percent, from 469 in 1985 to 8,755 in 2005. More than 70% of all criminal cases in the Chicago area involve a class D felony drug possession charge, the lowest-level felony charge.”

The challenge with Alexander’s thesis is that many Americans think “But they are criminals – they deserve to be jailed and punished for their crimes.” Alexander responds by noting that most of these “crimes” are for drug possession, and that “people of all colors use and sell illegal drugs at remarkably similar rates”. And yet, “black men have been admitted to prison on drug charges at rates twenty to fifty times greater than those of white men.” When a white college student is caught with marijuana, it’s seen as a youthful indiscretion, and no charges are filed; but when a black youth is stopped on the street, searched with no probable cause, and a joint is found, that youth is thrown in prison and prosecuted.

That imbalance in the application of laws is the basis of why Alexander calls the mass incarceration system the new Jim Crow. As she puts it, “Our racially biased system of mass incarceration exploits the fact that all people break the law and make mistakes at various points in their lives and with varying degrees of justification.” But people of color disproportionately get thrown in prison for such mistakes.

The defining aspect of Jim Crow laws was to have laws that treated African Americans as second-class citizens through poll taxes, literacy tests, grandfather clauses, and felon disenfranchisement clauses. Those laws were formally race-neutral as written, but were only applied to African Americans, as they were much less likely to have money to vote, be able to read, or be convicted as felons (due to a racially biased judicial system). White people who might have been affected by literacy tests or poll taxes were bailed out by grandfather clauses.

What Alexander claims is that felon disenfranchisement clauses continue to serve as a mechanism to treat African Americans as second class citizens. “People charged with drug offenses, though, are disproportionately poor people of color. They are typically charged with felonies and sentenced to prison.” Once they have been tagged as a felon, it is perfectly legitimate to discriminate against them and deny them jobs (there is a box on every job application form that asks whether you have ever been convicted of a felony), welfare, and any sort of social assistance.

Felons are then left with no way to get a job, and no social assistance to get back into legitimate society. It’s even worse, because “newly released prisoners are required to make payments to a host of agencies, including probation departments, courts, and child-support enforcement offices”, which can garnish more than 100% of income. But since they can’t get a job, they are unable to pay their fines, and are thrown back into prison. Or they turn to crime to pay their fines and support their families; when they get caught, they are incarcerated for life due to the proliferation of “three strikes” laws.

Alexander indicts the white majority with racial indifference leading to this civil rights nightmare.

Most people assume that racism, and racial systems generally, are fundamentally a function of attitudes. Because mass incarceration is officially colorblind, it seems inconceivable that the system could function much like a racial caste system. … We tell ourselves they “deserve” their fate, even though we know – and don’t know – that whites are just as likely to commit many crimes, especially drug crimes. … The notion that a vast gulf exists between “criminals” and those of us who have never served time in prison is a fiction created by the racial ideology that birthed mass incarceration, namely that there is something fundamentally wrong and morally inferior about “them”.

I’ll include a couple more points to drive home Alexander’s case.

Traffic stops are typically used to find “criminals”, but in one study on the New Jersey Turnpike, “15% of all drivers were racial minorities, yet 42 percent of all stops and 73 percent of all arrests were of black motorists, despite the fact that blacks and white violated traffic laws at almost exactly the same rate”, and, in fact, “whites were almost twice as likely to be found with illegal drugs or contraband as African Americans”. In Maryland, “African Americans comprised only 17 percent of drivers outside of Baltimore, yet they were 70 percent of those who were stopped and searched”.

This sort of bias puts a lie to the idea that the justice system is colorblind. Even if the laws are race-neutral, the application of those laws is biased at every step along the way, from deciding who gets pulled over for a traffic stop or a stop-and-frisk, to deciding who to prosecute, and deciding on the appropriate punishment. If Brock Turner had been a poor black man instead of a rich white man, he would almost certainly have gotten all charges filed and the maximum sentence. Prosecutors have a great deal of discretion to decide who to prosecute and what sentence to ask for, and apply that discretion in a racially biased way. Even if there is no conscious intent (the bar that has been set by the courts to show bias), the results are clearly biased.

Another of Alexander’s examples that drove home the racial disparity was drunk driving. The mandatory sentence for drunk driving is two days in jail for a first offense, and two to ten days for a second offense. Meanwhile, possession of crack cocaine carries a mandatory minimum sentence of five years in federal prison and a felony conviction. The difference? “White men comprised 78% of the arrests for this offense in 1990 when new mandatory minimums governing drunk driving were being adopted. They are generally charged with misdemeanors and typically receive sentences involving fines, license suspensions, and community service. Although drunk driving carries a far greater risk of violent death than the use or sale of illegal drugs, the societal response to drunk drivers has generally emphasized keeping the person functional and in society, while attempting to respond to the dangerous behavior through treatment and counseling.” Compare that to the poor people of color who are convicted of a felony and thrown in jail for a minor drug possession charge.

There is also tremendous economic incentive to pursue the drug war and increase the number of convictions. The laws are written such that “each [drug] arrest would net a given city or county about $153 in state and federal funding”, and that any property even vaguely associated with a drug crime can be seized and sold for profit by the police department. In fact, the drug involvement does not even have to be proven, and no charges have to be filed for the seizure to happen and be difficult to reverse. As is often said, follow the money to understand why events happen as they do.

Beyond the incentives for the police department, the prison industry is powerful in America. There has been a tripling of justice expenditures since 1983, and the justice system employs almost 2.4 million people in 2003. More than a million people could lose their jobs if the war on drugs stopped. And these people are typically in rural white areas, who are valuable voters due to the mechanism of the electoral college. Ironically, prison populations count towards the census, but the prisoners can’t vote, so that gives the (mostly white) voters in those counties a disproportionate voice in our government.

Alexander’s book is a searing indictment of our blindness to the racial bias inherent in our current “mass incarceration” justice system. It certainly opened my eyes with statistics and stories that hammered home how the system has had a disproportionate effect on people of color, and how people like me have turned a blind eye because we think that the people suffering are “criminals” and “deserve” it. It’s yet another reminder of the privilege I have had.

I think it’s especially important to have this awareness in the Year of Trump. Perpetuating the myth of America as a place where people get what they deserve is a dangerous lie, when the system is so heavily biased towards maintaining the power of rich, white men. That bias is likely to increase with Trump and his cabinet of billionaires in power, and we must be vigilant and alert to stop their attempts to further consolidate their economic and legal power.